United States District Court, D. Maryland
L. Hollander United States District Judge.
plaintiff Mich. Aurel, confined at North Branch Correctional
Institution (“NBCI”), asserts civil rights
violations under 42 U.S.C. § 1983, committed by prison
health care provider Wexford Health Sources, Inc.
(“Wexford”) and Wexford employee Holly Lee
Pierce, a Certified Registered Nurse Practitioner. ECF
1. Aurel alleges that he has been denied
treatment for a multitude of ailments, including abdominal
pain; chronic constipation; a colon infection; blood in his
stool; an ulcer; infections of the kidneys, stomach, liver,
blood, urinary tract, pancreas and large and small
intestines; pain in the right hip, right shoulder, and lower
back; inability to urinate; prostate and thyroid cancer;
liver pain; a liver cyst; throat, neck and chest pain;
hoarseness; hypothyroidism; shortness of breath; swollen
lymph nodes; and nerve pain. Further, Aurel claims that he
was improperly given an MRI without contrast. In addition, he
complains about the presence of a custody officer during
examination, asserting that it is a violation of the Health
Insurance Portability and Accountability Act of 1996
(“HIPAA”), Pub.L. 104-191. And, he complains that
he is improperly required to buy his own hemorrhoid cream,
artificial tears, multivitamins, Motrin, antifungal cream,
Tylenol, and aspirin. ECF 1.
seeks both compensatory and injunctive relief and punitive
damages. He requests a colonoscopy (ECF 1 at 3); an MRI with
contrast (id. at 4); a liver biopsy (id. at
5); and treatment to find the underlying cause of his chest
pain and shortness of breath. Id. at
response to the Complaint, Wexford and Pierce have moved to
dismiss or, in the alternative, for summary judgment. ECF 15.
The motion is supported by a memorandum (ECF 15-3)
(collectively, the “Motion”) and exhibits,
including extensive medical records (ECF 15-4) and
affidavits, including an Affidavit from NBCI's acting
Medical Director, Asresahegen Getachew, M.D. See ECF
15-5. Aurel was advised of his right to respond and oppose
the dispositive motion (ECF 16) and has done so. ECF 19. He
also submitted an exhibit. The defendants filed a reply (ECF
21), along with additional affidavits, including one from
Pierce and one from William Beeman, R.N., whom Aurel wrongly
accused as having been terminated from a hospital for
falsifying medical records.
filed three additional exhibits (ECF 26, ECF 27, ECF 28),
which include two affidavits from him. He appears to attempt
to amend his Complaint to add new medical defendants and new
allegations concerning medications, destruction of sick call
slips, destruction of stool cards, denial of a CT scan,
denial of medical recommendations by health care providers at
University of Maryland Hospital, refusal to act on a
physician's recommendation, denial of pain medication,
and denial of assistive devices, including a back brace,
cane, and walker.
hearing is necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2018). For the reasons stated below,
I shall grant the Motion.
parties do not dispute that Aurel is in his early fifties
with a significant medical history of hypothyroidism, asthma,
constipation, prostate enlargement, cough, hyperlipidemia,
and esophageal reflux. ECF 15-5 (Getachew Aff.), ¶ 4.
Defendants further note that Aurel has a mental health
diagnosis of hypochondria and somatic symptom disorder.
Id., ¶¶ 5, 8. Because of his conditions,
Aurel is a chronic care patient who is scheduled for regular
evaluation by physicians and mid-level health care providers
who manage and monitor his conditions. Id.
¶¶ 9, 22.
to January 1, 2019, Defendant Wexford was a private health
care provider under contract with the Maryland Department of
Public Safety and Correctional Services (“DPSCS”)
to provide primary health care services and utilization
management services for Maryland prisoners. ECF 15-5, ¶
1. Defendant Pierce was employed by Wexford to provide nurse
practitioner services to prisoners at NBCI. ECF 21-1 (Pierce
Aff.), ¶ 1.
illnesses, both real and perceived, have been addressed in
several prior lawsuits filed by Aurel in this Court.
See, e.g., Aurel v. Wexford, et
al., Civil Action ELH-15-1127, consolidated with
ELH-15-1797 (D. Md.) (summary judgment granted to medical
defendants; complaints of abdominal, throat and chest pain,
coughing, blurred vision, vomiting, blood in stool,
constipation, weakness, ear pain, cancer of the throat,
stomach, pancreas, gallbladder, eye and liver); Aurel v.
Wexford, et al., Civil Action ELH-16-1293 (D. Md.)
(summary judgment granted to medical defendants; complaints
of lower back and head pain stemming from 2009 fall,
destruction of sick call requests, and denial of back brace);
Aurel v. Wexford, et al., Civil Action ELH-18-1251
(D. Md.) (summary judgment granted to medical defendants;
complaints of lower back pain, abdominal pain, throat pain,
tongue infection, thyroid, liver, prostate and colon cancers,
gastrointestinal problems, including constipation, ulcers and
blood in stool, and hepatitis A & B infection).
Examination of these prior cases demonstrates that
Aurel's concerns that he suffers from physical ailments,
although mostly unfounded, are legion.
regard to his claims against Nurse Practitioner Pierce, Aurel
alleges that Pierce (1) bears responsibility for limiting his
MRI to a procedure without contrast dye, making it impossible
to show “nerves and veins in the body” and
precluding proper diagnoses; (2) refused to provide him
medication for nerve pain and arthritic pain; and (3) failed
to follow up on his sick call slips. ECF 1 at 3-4.
addition to Aurel's claims against Nurse Pierce, Aurel
states the medical notes found at ECF 15-4 at 37, 39, 41, 43,
45, 47, 59 and 51 are falsified because the names and
signatures of those who were to provide the medications
listed are merely printed onto a blank form, ECF 19 at 2,
¶ 12(iii); nothing in the record proves he is
non-compliant with medication (id. at ¶ 20);
and the record does not show any medications dispensed since
August 2018. Id. at ¶ 19.
contends that it is entitled to dismissal because Aurel fails
to identify unconstitutional policies and procedures that
were the motivating force behind its employee's alleged
denial of medical care, and because the doctrine of
respondeat superior is not recognized in civil
rights actions brought pursuant to 42 U.S.C. § 1983. ECF
15-3 at 15-16.
contends that she did not personally participate in any
wrongdoing, that the treatment rendered did not violate the
Eighth Amendment's prohibition against cruel and unusual
punishment, and that Aurel, a frequent litigator in this
Court, is engaged in “claim splitting.”
Id. at 9-12, 18-24. Defendants also argue jointly
that a violation under HIPAA has not occurred, and that any
allegations of medical negligence are not judicially
actionable in this forum. Id. at 13-14, 16-17.
medical records provide the following information, summarized
in an Affidavit submitted by Asresahegn Getachew, M.D.,
Wexford's acting Medical Director at NBCI.
is obsessive and fixates on certain symptoms, then wrongly
diagnoses himself, sometimes amplifying his symptoms on
presentation to health care providers. ECF 15-5, ¶ 8. He
confuses symptoms he has reported and treatments and
medications received and refuses to accept clinical
evidence-based diagnoses and treatment plans, particularly
when that evidence contradicts his own diagnoses.
Id. Dr. Getachew also avers that, despite
Aurel's allegations that lab results have been
fabricated, his lab work is performed by Garcia Laboratory in
Michigan and is not fabricated. Id. Plaintiff has
been assessed by psychiatry as hypochondriacal. Id.
Getachew also avers that Aurel photocopies and resubmits
multiple, repetitive sick call slips for the same issues
weekly and sometimes daily. Until December of 2017, a
mid-level provider evaluated those slips. In December 2017,
that evaluation was changed to monthly. In November of 2018,
Aurel was returned to a regular chronic care clinic
(“CCC”) schedule, wherein he is seen by a
provider every three months. His sick call slips are reviewed
when submitted and he is seen for regular sick call within
48-72 hours (the same procedure for all prisoners), but
repetitive slips are held for review during CCC.
Id., ¶ 9. Because Aurel is non-complaint with
medications, the pharmacy must sign for his “keep on
person” medications and CCC medications are required to
be directly observed (“DOT” or “directly
observed therapy”) when taken. Id., ¶ 10.
does not have thyroid, prostate, colon, or eye cancer, as
demonstrated by lab results. Id., ¶ 11. His
2016 colonoscopy was “unremarkable.” Id.
But, subsequent guaiac stool tests were positive for blood in
his stool. Id. At the time of Dr. Getachew's
Affidavit in November 2018, he said that plaintiff was
“being scheduled for a gastroenterology consult”
because of his stool tests. Id. Aurel states that he
had the gastroenterology consult on December 24, 2018. ECF 22
at 1, ¶ 2.
vision was tested in February of 2018 and, other than needing
corrective lenses, Aurel's exam was unremarkable. ECF
15-5, ¶ 11. Aurel's gums, throat and tongue have
been evaluated by both medical and dental providers and are
unremarkable, and his lymph nodes are not enlarged.
Id. He has been educated on these conditions but
refuses to believe his medical providers' assessments.
addition, Dr. Getachew avers that Aurel has chronic medical
conditions for which he is receiving regular medical care,
including hypothyroidism, asthma, and hyperlipidemia.
Id. ¶ 12. His hypothyroidism is well controlled
with medication and his thyroid levels are normal.
Aurel's asthma is stable and controlled with an albuterol
inhaler, and his hyperlipidemia is treated with a statin
medication and fiber supplement. Id.
Dr. Getachew avers that, notwithstanding plaintiff's
frequent complaints of low back and right hip pain radiating
down his right leg to his foot, Aurel has no anatomical
disorder causing such pain. Id., ¶ 13. An x-ray
of his LS spine and right hip were normal. Aurel does,
however, have some spinal changes that are being monitored.
The July 2018 MRI of the cervical spine revealed spondylotic
changes at ¶ 6-7, resulting in a moderate
right and mild left foraminal stenosis.
the MRI of Aurel's thoracic spine was normal, the MRI of
his lumbar spine revealed mild spondylotic changes at ¶
4-5 where there is a small tear and broad disc bulge. Dr.
Carls, an orthopedist, has recommended the reevaluation of
Aurel by a spine surgeon as a result of this condition, which
Dr. Getachew identified as a pinched nerve. Id. Dr.
Getachew notes that Dr. Carls first recommended conservative
treatment with stretching exercises, and that Dr. Getachew
reviewed the MRI results with Aurel and specifically told him
that he would benefit by exercise, strengthening his core
muscles, and losing weight. Id. at ¶ 15.
Although physical therapy helped in July 2017, Aurel no
longer wants physical therapy. Id. In July 2018, Dr.
Getachew ordered an MRI of the cervical and thoracic spine,
without contrast. Id. Dr. Getachew opines that
Aurel's argument that the MRI should have included
contrast is incorrect as there was no necessity for an MRI
with contrast. Id.
Getachew also avers that Aurel has been treated with
Neurontin, Baclofen, Cymbalta, Mobic, and Robaxin for pain,
but he exhibits a certain amount of drug seeking behavior, as
he consistently requests to be put on Vicodin and Tramadol.
Id., ¶ 16. Dr. Getachew also notes that Aurel
has received medications for neuropathic pain, including
amitriptyline, Neurontin, and Cymbalta, and is currently
prescribed Nortriptyline. Id. Further, Aurel is
provided Miralax to address his constipation and abdominal
pain. Id., ¶ 17. A January 2018 ultrasound was
unremarkable, except for indications of hepatic steatosis
(fatty liver), but liver function tests remain normal,
although a benign liver cyst has grown, Id.
clinical evidence supports Aurel's complaints of frequent
urination, and his prostate antigen tests
(“PSAs”) are normal. Id., ¶ 18.
Aurel is not diabetic, and he receives Terazosin to treat
urinary hesitancy. Id. The Court notes that Dr.
Getachew's averment that Aurel does not have an enlarged
prostate upon examination., id., is somewhat
contradicted by a July 16, 2015 CT scan which showed slight
enlargement of the prostate. ECF 19-1 at 3.
had been prescribed lozenges for his sore throat, which may
be due to his use of inhalers. But, these were discontinued
after he reported they did not help. His allergies are
treated with Zyrtec. Id., ¶ 19.
Getachew also asserts that the DPSCS policy at NBCI requires
prisoners to purchase over-the-counter medications and
hygiene items from the commissary. Id., ¶ 21.
If a prisoner is indigent, he will be prescribed medically
indicated medications otherwise available from the
Commissary. Aurel does not have a current medical need for
hemorrhoid ointment, antifungal cream, artificial tears,
multivitamins, Motrin, Tylenol, and aspirin and these
products are not provided to him. Id.
facts are included in the Discussion.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom. McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.” In reviewing a Rule
12(b)(6) motion, a court “must accept as true all of
the factual allegations contained in the complaint” and
must “draw all reasonable inferences [from those facts]
in favor of the plaintiff.” E.I. du Pont de Nemours
& Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011) (citations omitted); see Reyes v. Waples
Mobile Home Park Ltd. P'ship, 903 F.3d 415, 423
(2018); Semenova v. Md. Transit Admin., 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011).
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). The purpose of the rule is to provide the defendants
with “fair notice” of the claims and the
“grounds” for entitlement to relief. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
8(a)(2) of the Federal Rules of Civil Procedure requires only
a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Twombly,
550 U.S. at 573; see also Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 513 (2002) (stating that a complaint
need only satisfy the “simplified pleading
standard” of Rule 8(a)). But, the Supreme Court has
explained that a “plaintiff's obligation to provide
the ‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555
(citations omitted; alteration in Twombly).
to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009) (quoting Twombly, 550 U.S. at 570);
see Paradise Wire & Cable Defined Benefit Pension
Fund Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019);
Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
“But where the well-pleaded facts do not permit the
court to infer more than the mere ...